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Eastern District Issues Series of FDCPA/FCRA/CLRA Opinions in Roybal v. Equifax

by Scott J. Hyman |

In Roybal v. Equifax, Judge England issued three separate opinions addressing liability of furnishers and credit reporting agencies.  In Roybal v. Equifax, 2008 WL 453447 (E.D.Cal. 2008), Judge England addressed the CRAs for publishing allegedly inaccurate credit information about the plaintiff.  First, Judge England allowed a wife to pursue a claim for inaccuracies in the husband's credit report:   The… Read More

A Measure of Sanity — Northern District (again) Holds that Required Notices Do Not Violate FDCPA

by Scott J. Hyman |

In Boyle v. Arrow Financial Services, LLP, 2008 WL 4447727 (N.D.Cal. 2008), Judge Hamilton addressed whether a debt collector violates the FDCPA by including the following language in a collection letter: The letter also stated: “As required by law, you are hereby notified that a negative credit report reflecting on your credit record may be submitted to a credit reporting… Read More

Central District Orders CRAs to Scrub Bankruptcies; CRAs to Inform Furnishers of Procedures for Reporting Bankrupt Debt

by Scott J. Hyman |

United States District Court Judge David Carter recently approved a sweeping class action settlement under which the three credit reporting agencies have agreed to scrub historical data regarding bankrupt debtors.  White v. Experian, et. al. Case No. SACV 05-1070 DOC (MLGx) (C.D.Cal. 2008) Essentially, the CRAs typically would remove pre-bankruptcy debts from consumers' credit files only if the furnishers updated… Read More

FACTA Red Flag Rules Become Effective November 1, 2008

by Scott J. Hyman |

Reminder:  FACTA Red Flag Rules become mandatory November 1, 2008.    From the FTC's website: The Federal Trade Commission (FTC), the federal bank regulatory agencies, and the National Credit Union Administration (NCUA) have issued regulations (the Red Flags Rules) requiring financial institutions and creditors to develop and implement written identity theft prevention programs, as part of the Fair and Accurate Credit… Read More

Court of Appeal Protects Out-of-State Car Dealer from Suit, but Subjective “Bad Faith” Required to Give ‘Reverse’ Attorneys’ Fees under the CLRA

by Scott J. Hyman |

When an out-of-state car dealer successfully demonstrates that California had no jurisdiction over it, does the trial court retain jurisdiction to award attorneys fees to that defendant?  Yes it does, said a California Court of Appeal in Shisler v. Sanfer Sports Cars, Inc. (2008) __ Cal.Rptr. 3d __ 2008 WL 4347761.    Moreover, in determining whether the car dealer was… Read More

Court of Appeal says Inventory Damage to Vehicle Does Not Necessarily Make it “Used”, but Pre-Sale Repairs Might

by Scott J. Hyman |

Does damage to a new automobile in a dealer's inventory, however minor and regardless of repair, necessarily strip the vehicle of its status as “new” under the Consumers Legal Remedies Act (CLRA; Civ. Code § 1750 et. seq.?   In Bourgi v. West Covina Motors, Inc. -- Cal.Rptr.3d --, 2008 WL 4335593 (2008), the Court of Appeal said that it did… Read More

Eighth Circuit Says FDCPA Claims Can Be Arbitrated

by Scott J. Hyman |

      Numerous California state and federal decisions discuss arbitration clauses.  But recently only a few federal court decisions had addressed the specific situation of whether FDCPA claims fall within or outside an arbitration agreement.  (E.g. Gerber v. Citigroup, Inc. 2008 WL 596112 (E.D.Cal.2008) (FDCPA claim not arbitratable because valid arbitration agreement between parties not found);  Tickanen v. Harris & Harris, Ltd., 461 F.3d… Read More

Legislative Watch — AB 2116 (Portantino) (Rees-Levering NOI Legislation)

by Scott J. Hyman |

AB 2116 seeks to amend Civil Code § 2983.2(a)(2) regarding reinstatement of a motor vehicle conditional sales contract after repossession for non-payment. Civil Code § 2983.2(a)(2) sets forth post-repossession obligations a finance company must follow when consumers seek to reinstate their contracts.     ab_2116_bill_20080220_introduced ab_2116_bill_20080507_amended_asm_v97 ab_2116_bill_20080403_amended_asm_v98 ab-2116-assembly-bill-bill-analysis-judicial ab-2116-assembly-bill-bill-analysis   BILL STATUS as of 9/22/08 MEASURE :  A.B. No. 2116 AUTHOR(S)… Read More

BAP Addresses Treatment of “Negative Equity” in Automobile Retail Installment Contracts

by Scott J. Hyman |

Prior to the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), the ability of a debtor to "cramdown" the secured amount of a motor vehicle claim was commonplace.   BAPCPA seemingly precluding the cramdown of claims secured by a purchase money security interest in certain vehicles obtained within 910 days of the bankruptcy filing. But the 2005 BAPCPA… Read More

Central District Says FDCPA Penalty “Per Action”; Clarifies Recoverable “Actual Damages”

by Scott J. Hyman |

In Miller v. Midland Funding, LLC, 2008 WL 4093004 (C.D.Cal. 2008), Judge Otis Wright clarified the type of penalties and damages recoverable under the FDCPA.  As to the $1,000 penalty, Judge Wright explained: Defendants are correct that statutory damages are limited to $1,000 per action, not $1,000 per defendant.  Clark v. Capital Credit & Collection Services, Inc. 460 F.3d 1162, 1178 (9th… Read More

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